Affordable Care Act: A national solution to a national problem

The Supreme Court is expected to rule on the constitutionality of the Affordable Care Act in the coming days, and it's hard to predict how the justices will rule. But that's not because the Constitution is unclear. Ideologues have muddied the issue by suggesting that this case is about whether Congress has the power to force us to quit smoking, exercise, and even eat broccoli. It's not.

My office filed a brief on behalf of 11 states,Washington, D.C., and the Virgin Islands to remind the Supreme Court of what this case is really about: Congress' ability to address national problems that states cannot comprehensively address on their own. Whether the members of the court or the public like the act is irrelevant. The legal question before the court is whether Congress has the power, under the Constitution's Commerce Clause, to regulate individuals as part of a larger effort to confront national economic challenges that defy state borders. The answer to this question is unambiguously yes. In fact, it's why the Commerce Clause was written.

Before the Constitution, there was no federal authority over economic matters, and states largely fended for themselves. This created a host of difficulties for states, which could not effectively regulate commerce that started or ended beyond their borders. It also hamstrung the federal government, which could not help states by devising national solutions to economic woes. Thus, as the court has recognized, "The Commerce Clause emerged as the Framers' response to the central problem giving rise to the Constitution itself: the absence of any federal commerce power."

With the Commerce Clause, Congress was finally able to help states tackle economic challenges with national dimensions. For instance, during the Great Depression, the U.S. agricultural sector was battered by international swings in wheat prices that were exacerbated by state-level variations in wheat stock. Using its Commerce Clause power, Congress was able to step in and pass a law that regulated wheat production by individual farmers across the country, something states lacked the ability to do. This law was unanimously upheld by the Supreme Court. Later in the 20th century, when millions of Americans were suffering from inadequate pension plans, Congress used its Commerce Clause power to enact ERISA, which requires individual employers to provide minimum pension protections. These are just two examples of ways in which Congress has used the Commerce Clause as it was meant to be used: to craft national solutions to economic problems that states cannot fully solve.

Now states are facing one of their toughest economic challenges yet: the soaring cost of health care. The health care sector is the nation's largest, comprising nearly 18 percent of GDP and an even higher percentage of most state budgets. A big driver of state health care costs is care for the uninsured. Maryland hospitals provide nearly $1 billion in uncompensated care to the uninsured each year. This economic challenge simply cannot be solved at the state level — through requiring citizens to obtain a minimum level of health insurance or requiring in-state employers and insurers to provide it — because people and businesses can easily move out of state and because the uninsured can and do cross state lines to seek medical care.

Congress' solution to this complex problem is the Affordable Care Act. The law requires individuals across the country to maintain a minimum level of health insurance coverage and requires insurers to issue health insurance to those who seek it. It also expands federally funded health insurance for low- and moderate-income families through Medicaid. And it empowers states to connect their citizens with insurers that meet their budgets through state-run exchanges.

Through these and other measures, the Act enables states to deliver quality care to more people, all while reducing costs. Thanks to the act, Maryland will be able to reduce the number of uninsured in its state from 13 percent to 5.5 percent by 2015, and save an estimated $853 million in health care costs over the next 10 years. Without the act, it will be much more difficult for Maryland to meet the health care needs of its citizens and expand coverage to the uninsured.

Through the Affordable Care Act, Congress is helping states tackle a major economic problem with national dimensions, precisely the type of problem the Framers wrote the Commerce Clause to address. And Congress is doing so through regulating individual and corporate participation in the affected market in ways that strengthen states, precisely the type of federalism-respecting solution the Framers would approve. The Supreme Court would be wise to approve it as well.

Douglas F. Gansler, a Democrat, is Maryland's attorney general. His email is oag@oag.state.md.us.

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